[Cite as State v. Guy,
2017-Ohio-7006.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-16-045
Appellee Trial Court No. 97-CRB-01072
v.
Tony S. Guy DECISION AND JUDGMENT
Appellant Decided: July 28, 2017
…
Hunter Brown, Bowling Green City Prosecutor, for appellee.
Derek A. DeBrosse, for appellant.
…
JENSEN, P.J.
I. Introduction
{¶ 1} Appellant, Tony Guy, appeals the judgment of the Bowling Green Municipal
Court, denying his motion to withdraw his guilty plea and to set aside his conviction. We
affirm.
A. Facts and Procedural Background
{¶ 2} On June 11, 1997, appellant entered a plea of guilty to one count of domestic
violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. Appellant
appeared before the trial court and entered a plea of guilty to the aforementioned charge.
The trial court subsequently sentenced appellant to 30 days in jail with 25 of those days
suspended and the remaining days stayed pending completion of a domestic violence
counseling program. Appellant’s sentence has since been fully served.
{¶ 3} Almost 19 years later, on May 13, 2016, appellant filed a motion with the
trial court in which he sought the withdrawal of his guilty plea and an order setting aside
his conviction. In his motion, appellant asserted that his guilty plea was not knowingly,
intelligently, and voluntarily entered because he was allegedly not informed that he
would be permanently banned from possessing a firearm under 18 U.S.C. 922(g)(9) as a
result of his guilty plea to domestic violence. A hearing was subsequently held on the
motion on June 29, 2016. At the hearing, the state stipulated to the admission of
appellant’s affidavit, in which he stated that the trial court failed to inform him of the loss
of his right to possess a firearm prior to entering his guilty plea. According to the
affidavit, appellant is a “lifelong firearms enthusiast” and, as such, “never would have
pled guilty to the domestic violence charge had [he] known [he] would lose [his] right to
possess a firearm.” Notably, the parties agreed at the hearing that the plea hearing
records from 1997 have since been destroyed and were therefore unavailable for the trial
court’s consideration.
2.
{¶ 4} Upon consideration of the arguments contained in appellant’s motion, as
well as the arguments advanced by the state in its memorandum in opposition to
appellant’s motion, the trial court denied appellant’s motion on August 18, 2016. In its
decision, the court found that appellant failed to establish that the plea should be vacated
in order to correct manifest injustice. Appellant’s timely appeal followed.
B. Assignment of Error
{¶ 5} On appeal, appellant assigns the following error for our review:
1. The Trial Court erred by not declaring that a manifest injustice
occurred justifying Appellant to withdraw his guilty plea.
II. Analysis
{¶ 6} In his sole assignment of error, appellant argues that the trial court erred in
denying his motion to vacate his guilty plea based upon its conclusion that appellant
failed to establish manifest injustice.
{¶ 7} A motion to withdraw a guilty plea is governed by Crim.R. 32.1, which
provides: “A motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
“A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has
the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio
St.2d 261,
361 N.E.2d 1324 (1977), paragraph one of the syllabus. The decision of
whether manifest injustice occurred is left to the sound discretion of the trial court. Id. at
3.
paragraph two of the syllabus. Absent an abuse of discretion, an appellate court will not
reverse a trial court’s denial of a motion to withdraw a guilty plea. State v. Nathan,
99
Ohio App.3d 722, 725,
651 N.E.2d 1044 (3d Dist.1995). An abuse of discretion connotes
that the trial court’s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶ 8} Notably, courts have previously held that “[t]he length of passage of time
between the entry of a plea and a defendant’s filing of a Crim.R. 32.1 motion is a valid
factor in determining whether a ‘manifest injustice’ has occurred.” State v. Bastra, 5th
Dist. Muskingum No. CT2016-0052, 2017-Ohio-2665, ¶ 11, citing State v. Copeland-
Jackson, 5th Dist. Ashland No.
02COA018,
2003-Ohio-1043, ¶ 7. In Bastra, the Fifth
District held that the trial court abused its discretion in granting the defendant’s motion to
withdraw his guilty plea, where the motion was filed 12 years after the plea was entered
and there was no transcript of the plea hearing available to the trial court as a result of the
amount of time that had passed. Id. at ¶ 12-13. Given the missing transcript, the court
relied upon the regularity of the proceedings under Knapp v. Edwards Laboratories,
61
Ohio St.2d 197,
400 N.E.2d 384 (1980), and concluded that the defendant had not shown
the manifest injustice required to permit the withdrawal of his guilty plea.
Id.
{¶ 9} Similarly here, appellant filed his motion to withdraw his guilty plea almost
19 years after he entered his guilty plea. As in Bastra, the plea transcript that would
assist us in determining whether in fact appellant was informed of his firearm
disqualification as he alleges is no longer available. Nonetheless, appellant argues that
4.
the trial court should have granted his post-sentence motion to withdraw his guilty plea,
because he promptly filed the motion after he realized that he was unable to acquire a
firearm as a result of his misdemeanor domestic violence conviction. Appellant contends
that his 19-year delay was not unreasonable because he was unaware of his firearm
disqualification during that period.
{¶ 10} In his reply brief, appellant acknowledges that he knew he was under a
firearm disqualification for a 1989 felony conviction for trafficking in marijuana, but
insists that he did not know that the domestic violence conviction also resulted in a
firearm disability. Appellant asserts that firearm disabilities may be relieved as to felony
convictions under R.C. 2923.14. However, according to appellant, there are no such
procedures for relief from firearm disabilities that flow out of misdemeanor convictions.
Importantly, appellant has not demonstrated, nor even alleged, that he has actually been
relieved from his prior felony firearm disability. Therefore, the record does not
demonstrate that he would be permitted to possess a firearm even if the trial court would
have granted his motion to withdraw his guilty plea. Moreover, we find that the length of
time that passed between appellant’s plea of guilty and his filing of the motion to
withdraw the plea, along with our presumption of regularity in light of the missing plea
hearing transcript, precludes a finding of manifest injustice under the facts of this case.1
1
Appellant also challenges the constitutionality of R.C. 2943.033, which provides, in
relevant part:
5.
{¶ 11} Accordingly, appellant’s sole assignment of error is not well-taken.
{¶ 12} Conclusion
{¶ 13} For the foregoing reasons, the judgment of the Bowling Green Municipal
Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
(C) Prior to accepting a guilty plea or plea of no contest to an indictment,
information, or complaint that charges a person with a misdemeanor
offense of violence, the court shall inform the defendant either personally
or in writing that under 18 U.S.C. 922(g)(9) it may be unlawful for the
person to ship, transport, purchase, or possess a firearm or ammunition as a
result of any conviction for a misdemeanor offense of violence. The plea
may not be vacated based on a failure to inform the person so charged
regarding the restrictions under 18 U.S.C. 922(g)(9).
Because we do not rely on the language of R.C. 2943.033 in arriving at our decision, we
do not reach the question of constitutionality.
6.
State v. Guy
C.A. No. WD-16-045
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
7.
